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  4. Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4) - [2020] QIRC 211

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Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4)[2020] QIRC 211

Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4)[2020] QIRC 211

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4) [2020] QIRC 211

PARTIES:

Robertson, Clare

(Applicant)

v

State of Queensland (Department of Communities, Disability Services and Seniors)

(Respondent)

CASE NOS:

B/2018/46 and B/2018/47

PROCEEDING:

Application for unpaid wages

DELIVERED ON:

8 December 2020

HEARING DATE:

7 September 2020

DATES OF LAST WRITTEN

SUBMISSIONS:

Applicant's written submissions filed on 25September 2020, Respondent's written submissions filed on 16 October 2020 and Applicant's written submissions in reply filed on 30 October 2020.

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

  1. In Matter No. B/2018/47, that pursuant to s 278(8)(a)(i) of the Industrial Relations Act1999, the Respondent pay the Applicant the amount of $12,100.32, less applicable tax, if any, within 22 days of 8 December 2020.

  1. The application in Matter No. B/2018/46 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - employment - application for unpaid wages - whether wages payable and unpaid - incentive payment payable on termination of employment under Directive made under the Public Service Act 2008 - incentive payment paid as if the Applicant was a tenured part-time employee at time of termination - whether Applicant was a tenured part-time employee at time of termination within meaning of Directive - wages payable and unpaid in respect of incentive payment - order to pay wages payable and unpaid less applicable tax, if any, within 22 days

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Directive No. 04/12 Early retirement, redundancy and retrenchment, cl2, schA and schB

Family Leave (Queensland Public Sector) Award - State 2012, cl 6.4, cl 7.3 and cl 8.3

Industrial Relations Act 1999, s 29C, s 32, s 278 and s331

Industrial Relations Act 2016, s 95

Public Service Act 2008, s 47, s 54, s 121, s 123, s124, s 125, s 126, s 147, s 148, s 149 and s 217

Queensland Public Service Award - State 2012, cl4.3 and cl4.8

Statutory Instruments Act 1992, s 7 and s 14

CASES:

Ace Insurance v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532

Kidd v Savage River Mines (1984) 6 FCR 398

Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95

Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No.2) [2019] QIRC 196

Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No.3) [2020] QIRC 074

Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250

The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394

Workpac Pty Ltd v Rossato [2020] FCFCA 84; (2020) IR 296 38

APPEARANCES:

Ms C. Robertson, the Applicant in person

Ms C. Laird, of Providence HR, for the Respondent

Reasons for Decision

Introduction

  1. [1]
    This proceeding[1] involves claims for unpaid wages made by Ms Clare Robertson arising out of her employment by the State of Queensland ('the State') in what is now the Department of Communities, Disability Services and Seniors ('the Department').
  1. [2]
    In Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 2) ('Robertson No. 2'),[2] I made decisions in respect of an application in existing proceedings by the State that contended that certain claims made by MsRobertson were statute barred.
  1. [3]
    In Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 3) ('Robertson No. 3'),[3] I made further decisions that other claims made by Ms Robertson should be dismissed because further proceedings were not necessary or desirable in the public interest within the meaning of s 331 of the Industrial Relations Act 1999 ('the 1999 Act').
  1. [4]
    Following on from the decision in Robertson No. 3, there is one outstanding unpaid wage claim that requires determination. Ms Robertson claims the amount of $12,100.32 in respect of an incentive payment payable pursuant to Directive No. 04/12 Early retirement, redundancy and retrenchment ('the 2012 Redundancy Directive').
  1. [5]
    MsRobertson commenced employment with the State on 2 December2002 and her employment ended on 19 October 2012 because her position was deemed surplus to requirements. On 24 September 2012, Ms Robertson accepted an offer of a voluntary redundancy.[4]
  1. [6]
    MsRobertson claims she should have been working on a full-time basis at the date of the termination of her employment and that the incentive payment of 12 weeks' pay she received, as a consequence of accepting a voluntary redundancy, should have been calculated and paid to her on the basis that she worked five days per week and not on the two days per week she was actually working and for which she was being paid at the date of the termination of her employment ('the incentive payment claim').
  1. [7]
    The issue for determination is whether there are wages payable and unpaid by the State to Ms Robertson, within the meaning of s 278(8)(a)(i) of the 1999 Act, in respect of the incentive payment claim.
  1. [8]
    The specific question is whether, as at 19 October 2012, MsRobertson fell within the class of employees described as 'Tenured part-time employees' within the meaning of sub-cl3.3 of Schedule B to the 2012 Redundancy Directive.
  1. [9]
    For the reasons that follow, Ms Robertson was not, as at 19 October 2012, a tenured part‑time employee within the meaning of sub-cl 3.3 of Schedule B to the 2012 Redundancy Directive, the consequence of which is that there are wages payable and unpaid by the State to Ms Robertson in the gross amount of $12,100.32.

The undisputed facts

  1. [10]
    Some of the facts, relevant to the incentive payment claim, were set out in Robertson No.2, namely (footnotes omitted):

[47]The offer of a voluntary redundancy was made to Ms Robertson by letter dated 30 August 2012 from Ms Kathy Dunning, Deputy Director-General of the Department ('MsDunning's letter'). In her letter, Ms Dunning relevantly stated:

I am now writing to advise you that as a result of recent machinery-of-government changes, the Department of Communities, Child Safety and Disability Services has been restructured.

As a consequence, your position has been deemed surplus to requirements. Unfortunately as we have been unable to identify an alternative role to place you in, you have been designated as an employee requiring placement (ERP).

…

The information below provides further information about the choices available to you. For further information, please refer to Directive 06/12: Employees Requiring Placement and Directive 04/12: Early Retirement, Redundancy and Retrenchment. Copies of these directives are enclosed and are also accessible through the Public Service Commission website at www.psc.qld.gov.au.

Offer

In accordance with Directive 06/12: Employees Requiring Placement, I am offering you the opportunity to choose between two options:

  1. Accept a voluntary redundancy; or
  2. Pursue transfer and/or redundancy opportunities.

You need to advise of your decision within 14 days of your date of receipt of this letter. If I do not receive your decision in this timeframe, I will conclude that you have chosen to pursue transfer opportunities.

Voluntary redundancy

The offer of a voluntary redundancy is made in accordance with Directive 04/12: Early Retirement, Redundancy and Retrenchment. The redundancy package is made up of:

  • your accrued recreation leave;
  • your accrued long service leave (provided you have had at least one year of service);
  • a severance payment (of 2 weeks' salary per year of service - to a maximum of 52 weeks); and
  • an incentive payment of 12 weeks' salary.

An estimate of the redundancy package is enclosed for your information.

In making this offer, I confirm that it is a bona fide redundancy (refer to section 3.2 of Directive04/12).

Should you elect to accept the voluntary redundancy, your employment with the department will cease on 19 October 2012.

[48]Attached to Ms Dunning's letter was a pro forma document on which Ms Robertson had to indicate whether she accepted or declined the voluntary redundancy offer.

[49]Also attached to Ms Dunning's letter was a schedule setting out an estimate, as at 31 August 2012, of the benefits Ms Robertson would receive if she accepted the offer and her employment ended on 19 October 2012 ('the estimate schedule'). The estimate schedule set out an estimate of the cash equivalent of Ms Robertson's recreation leave and leave loading, long service leave, severance payment and incentive payment.

…

[52]On 24 September 2012, Ms Robertson advised in writing that she wished to accept the voluntary redundancy offer and to cease her employment with the Department on 19 October 2012. Ms Robertson ticked the box, on the pro forma accompanying MsDunning's letter, next to which were these words:

I wish to accept the voluntary redundancy offer and cease my employment with Department of Communities, Child Safety and Disability Services on 19 October 2012. I understand that in the event I am re-employed with any Queensland Public Service entity within the severance period, I will be required to repay a proportion of the redundancy package, in accordance with the directive relating to early retirement, redundancy and retrenchment.

[53]In accepting the offer, Ms Robertson indicated that she had been provided a copy of the 2012 Redundancy Directive and Directive No. 06/12 Employees Requiring Placement and that she had the opportunity to consider the information in those directives and the advice provided in Ms Dunning's letter.

  1. [11]
    Exhibit 4, exhibit C is a letter dated 16 January 2007 confirming Ms Robertson's appointment, in December 2006, to the predecessor to the Department ('the 2007 letter of appointment').
  1. [12]
    The 2007 letter of appointment provided that the basis of MsRobertson's employment was 'Tenured Full-Time'.
  1. [13]
    Ms Robertson's evidence is that immediately before she started parental leave, the position she held was full-time.[5]
  1. [14]
    Exhibit 1, exhibit A includes a document headed 'Part-time Employment Agreement' that concerned Ms Robertson's part-time arrangement under parental leave provisions for the period from 25 May 2012 to 25 May 2013. During that period, Ms Robertson worked one day per week.
  1. [15]
    Exhibit 1, exhibit B includes a document also headed 'Part-time Employment Agreement' that concerned MsRobertson's part-time arrangement under parental leave provisions for the period from 3 August 2012 to 31 August 2012. During that period, MsRobertson worked two days per week.
  1. [16]
    There is no dispute that Ms Robertson continued to work on a part-time basis, two days per week, for a period of seven weeks from 1 September 2012 to 19 October 2012.

The further evidence

  1. [17]
    Ms Robertson's evidence is that:
  • there was no part-time agreement, or any other documented arrangement, covering the final seven weeks of her employment from 1 September 2012 to 19 October 2012, other than the 2007 letter of appointment which provided that she was a tenured, full-time employee;[6]
  • there is no other document that exists to alter that employment contract;[7]
  • the requirement for part-time agreements to be agreed by both the employer and the employee, in writing, is provided for in:
  • -s 29C(1)(a) of the 1999 Act;
  • -sub-cl 4.3.2(a) of the Queensland Public Service Award - State 2012 ('the Award'); and
  • -sub-cl 7.3.1(a) of the Family Leave (Queensland Public Sector) Award - State 2012;[8]
  • section 29C(1)(d) of the 1999 Act and sub-cl 7.3.1(d) of the Family Leave (Queensland Public Sector) Award - State 2012 provide that the dates that part‑time work is to start and end must also be in writing;[9]
  • the dates for the start and end of her temporary part-time agreement were recorded in writing, with the end date being 31 August 2012;[10]
  • on 28 September 2012, her Director, Mr Michael Bond, presented to her a copy of a pre-filled 'Employment Status Change Request' and a document entitled 'Part‑time Employment Agreement' with the 'end date' in both documents left blank;[11]
  • the document entitled 'Employment Status Change Request' recorded, under the sub‑heading 'Current position details', that she was 'Permanent full-time';[12] and
  • both documents, signed by Mr Bond on 28 September 2012, sought to retrospectively alter her full-time status to temporary part-time and that she was asked to countersign the documents, which she refused.[13]
  1. [18]
    Ms Robertson also stated that she did not wish to work part-time, either on a permanent basis or on a temporary basis, and that she wished to return to her full-time role.[14]
  1. [19]
    Ms Robertson's further evidence is that:
  • having regard to s 32 of the 1999 Act and sub-cls 6.4.2 and 6.4.4 of the Family Leave (Queensland Public Sector) Award - State 2012, she had an automatic entitlement to her full-time position upon completion of her parental leave;[15]
  • section 2 of the Department's Flexible work practices (including part‑time employment) Policy No. 241 ('the Flexible Work Policy') provides that employees accessing part-time employment in relation to parental leave have a right to return to their full-time position and that rather than the employee needing to make an application to return to full-time work, the Flexible Work Policy required that only a 'staff adjustment form' had to be completed and sent to payroll and that such a form had to be completed and signed by her line manager;[16]
  • the part-time work arrangements procedure under which she worked on a part-time basis provided that the provision, that a part-time employee under such an arrangement had no automatic right to return to full-time duty, did not apply to staff who were under part-time parental leave;[17] and
  • the State did not undertake a process to change the basis of her tenured employment, as provided for in the Flexible Work Policy because, as provided for in s 3 of that Policy, there had to be the completion of both the Staff Adjustment Form and a Part-Time Employment Agreement.[18]
  1. [20]
    The further evidence of Mr Scott Findlay, on behalf of the State, was that:
  • public service officers are tenured public service employees, in that their employment is ongoing unless their employment is terminated under a provision of the Public Service Act 2008 ('the PS Act') or the public service officer resigns, and that public service officers can either be full-time or part-time and that both full-time and part-time public service officers are tenured in that they are permanent, ongoing employees;[19]
  • public service officers, because they were tenured, either working part-time or full‑time, could not be made redundant other than voluntarily or in limited circumstances following a comprehensive process seeking to identify redeployment opportunities;[20]
  • when public service officers move between part-time and full-time hours, they do not lose their status as a tenured public service officer and that the tenure is attached to the employee being a public service officer, and not whether they are full‑time or part-time;[21]
  • Ms Robertson was a tenured public service officer for the entirety of her employment and, because she was working two days per week at the time her employment came to an end, she was considered a tenured part-time employee;[22] and
  • because Ms Robertson was working part-time at the time of the voluntary redundancy, she could not have been considered to be a full-time tenured employee at that time as a public service officer cannot be both a full-time and a part‑time employee at the same time.[23]

The relevant instruments

Queensland Public Service Award - State 2012

  1. [21]
    At the time of the termination of her employment, the Award applied to Ms Robertson.
  1. [22]
    Clause 4.8 of the Award dealt with the rights and liabilities of the State and its employees, to whom the Award applied, about redundancy. That clause relevantly provided:

4.8Redundancy

The provisions of clause 4.8 will not apply to employees of Queensland government departments and agencies to the extent that the provisions of the redundancy arrangements are contained in a Directive issued by the Minister responsible for industrial relations pursuant to section 54 of the Public Service Act 2008, where the Directive provides for entitlements that are superior to clause4.8.

The 2012 Redundancy Directive

  1. [23]
    The 2012 Redundancy Directive provided for entitlements that were superior to those in cl4.8 of the Award.
  1. [24]
    Clause 3 of Schedule A to the 2012 Redundancy Directive relevantly provided:

3. Redundancy

3.1. When workplace change results in redundant positions or functions and an employee has been declared as surplus (‘an employee requiring placement’), an agency may immediately offer the employee requiring placement a voluntary redundancy package.

3.2. An employee is considered to be genuinely surplus if:

  1. (a)
    the chief executive has made a definite decision that the job the employee has been doing is no longer required to be done by an employee;
  1. (b)
    that decision is not due to the ordinary and customary turnover of labour;
  1. (c)
    the decision led to the proposal to terminate the employee's employment; and
  1. (d)
    the proposed termination of employment is not on account of any personal act or default of the employee, for example unsatisfactory performance or behaviour.
  1. [25]
    Schedule B to the 2012 Redundancy Directive was headed 'ENTITLEMENTS' and relevantly provided (footnotes omitted):

1.Entitlement

1.1. Packages provided by this directive are compensation for loss of job tenure.

…

Redundancy

1.4. A redundancy package will comprise the following:

  1. (a)
    Accrued recreation leave;
  1. (b)
    Accrued long service leave for employees who have worked for at least one year, on the basis of 1.3 weeks for each year of continuous service and a proportionate amount for an incomplete year of service;
  1. (c)
    A severance payment of two weeks' full-time pay per full-time equivalent year of service and a proportionate amount for an incomplete year of service paid at the employee's substantive appointed level. The minimum payment is four weeks' pay, and the maximum is 52 weeks, provided that no employee will receive less than the severance payment under the Termination, Change and Redundancy Statement of Policy issued by the Queensland Industrial Relations Commission.

1.5. A redundancy package may comprise an incentive payment (refer to section 3 below for further information on incentive payments).

…

3.Incentive payment

3.1. In addition to the severance payment, an incentive payment may be offered once only to encourage employees to exit the department on or by a specified date. The payment will be $6,500 or 12 weeks' pay at the employee's substantive level, whichever is the greater.

3.2. The incentive payment reduces by the equivalent of one week's pay for each week the employee delays leaving the department after the specified date.

3.3. Tenured part-time employees who are offered an incentive payment will be entitled to a portion of the incentive payment, which will be adjusted to reflect the proportion of full-time hours worked by the employee. For example, if .5 is the proportion of full-time hours worked by an employee for the position, the incentive payment applicable would be $3,250 or 12weeks' salary, calculated at the employee's usual part-time rate (i.e. in this example .5), whichever is the greater.

3.4. Incentive payments may apply to early retirements and redundancies, but do not apply to retrenchments.

3.5.The incentive payment includes payment in lieu of notice.

Ms Robertson's submissions

  1. [26]
    Ms Robertson submitted that:
  • the nature of an employee's tenure, being their substantively appointed position, is defined in s 125 of the PS Act as being either full-time or part-time;[24] and
  • as provided for in sub-cl 1.1 of ScheduleB to the 2012 Redundancy Directive, the packages provided by that Directive '… are compensation for loss of job tenure'.[25]
  1. [27]
    Ms Robertson further submitted that:
  • the State could not make redundant a position she did not hold, namely, a part‑time position;[26] and
  • the job the State determined was no longer required was a full-time job and regardless of historical and expired acting arrangements or temporary arrangements, the position no longer required by the State was a full-time position, that was a position she held and she should have been properly compensated for loss of that job tenure.[27]
  1. [28]
    Ms Robertson also submitted that she did not meet the description of a tenured part‑time employee in sub-cl 3.3 of Schedule B to the 2012 Redundancy Directive because:
  • the 2012 Redundancy Directive provided that it did not apply to temporary employees;[28]
  • if the pro rata incentive payment, as provided for in sub-cl 3.3 of Schedule B to the 2012 Redundancy Directive, was payable to all part-time employees, whether permanent part-time by virtue of tenure or temporary part-time by virtue of a temporary agreement under the Family Leave (Queensland Public Sector) Award - State 2012, the word 'tenured' need not be used at all in the 2012 Redundancy Directive;[29]
  • as a consequence, the word 'tenured' does appear in the 2012 Redundancy Directive and can only serve to distinguish between the entitlement for a tenured full-time employee as against a tenured part-time employee;[30]
  • she was not a part-time employee at the time of her separation from her employment with the State because she did not agree to a temporary part‑time arrangement and did not agree to a change in her employment status from permanent full-time to permanent part-time, with the consequence that she was not a part-time employee having regard to '… the legislation, policies and procedures';[31]
  • the fact she was working two days a week is not of itself evidence of a part‑time status, but is evidence of the Department '… in breach of its employment obligations and its denial of my employment rights under the relevant industrial instruments';[32]
  • the State acted as though it had permanently altered her employment tenure without following a legitimate process to do so and it did so to prevent paying her wages and the correct compensation under the 2012 Redundancy Directive;[33] and
  • the allegation by the State that she did not have an automatic entitlement to her full‑time position (as asserted in earlier submissions by the State filed on 2 November 2018) is inconsistent with the 1999 Act, the Family Leave (Queensland Public Sector) Award - State 2012 and the Flexible Work Policy which provide for the return of a full-time employee, who was working on a part‑time basis under the Family Leave (Queensland Public Sector) Award - State 2012, as a right.[34]
  1. [29]
    Ms Robertson then went on to make submissions that she was the subject of unlawful discrimination, in contravention of the Anti-Discrimination Act 1991, by the State using family responsibilities to make discriminatory decisions about her entitlement to the incentive payment.[35]

The State's submissions

  1. [30]
    The State does not dispute that, because the entitlements in the 2012 Redundancy Directive are superior to those contained in cl 4.8 of the Award, the 2012 Redundancy Directive determined Ms Robertson's relevant entitlements. [36]
  1. [31]
    The State submits that:
  • the resolution to the question of whether Ms Robertson was entitled to the full‑time rate of the incentive payment is whether, when working two days per week at the time of the termination of her employment, Ms Robertson was a 'tenured part-time employee' within the meaning of sub-cl 3.3 of ScheduleB to the 2012 Redundancy Directive;[37]
  • having regard to s 121(2), s 123, s 124, s 125, s 126 and s 217 of the PS Act, and having regard to the ordinary meaning of the noun 'tenure'[38] on a plain reading of those provisions, '… tenure refers to the permanence of employment;'[39]
  • an employee who is a tenured public service officer is one who, unless employment is terminated in accordance with the PS Act, or they resign their employment, has the security that their employment will continue;[40]
  • an employee on tenure, in accordance with s 125 of the PS Act, can either be employed full-time or part-time and s 125 merely confirms that the benefit of tenure is not restricted to full-time employment and that an employee's tenure is not lost if that employee moves from full-time to part‑time employment or vice versa;[41]
  • an employee's 'tenure' survives any change from full-time to part-time or vice versa and although Ms Robertson changed from full-time to part-time and back a number of times during her employment, it did not result in her ceasing to be a 'tenured' employee;[42] and
  • once tenure is obtained, it attaches to the employee's employment and not to whether that employment is full-time or part-time, and that such a conclusion is supported by s 149 of the PS Act.[43]
  1. [32]
    The State then submits that:
  • Ms Robertson was a tenured employee and that she was, at times, a tenured full‑time employee and, at other times, a tenured part-time employee and that her status as a tenured employee did not alter when her employment changed from full‑time to part‑time and vice versa during her employment;[44]
  • there is no dispute that, at the time of the termination of her employment, MsRobertson was working two days per week with the consequence that MsRobertson's employment came within the definition of part‑time employment contained in cl 4.3 of the Award,[45] and that her 'tenure' had not been impacted by her move from full-time to part-time employment;[46]
  • the reference to 'Tenured part-time employees' in sub-cl 3.3 of ScheduleB to the 2012Redundancy Directive does nothing more than provide clarity that it is only employees who are 'tenured and who are working part-time' who have access to the relevant entitlements and that employees who are part-time employees who do not have the benefit of 'tenure', for example, temporary employees under s 148 of the PS Act or casual employees, are excluded from access to the relevant entitlements;[47] and
  • as Ms Robertson, at the relevant time, was working as a part-time employee, as provided for in the definition of 'part-time employee' in the Award and that she was a tenured public service employee, she was entitled to the provisions of ScheduleB to the 2012 Redundancy Directive in accordance with the terms of the Directive.[48]
  1. [33]
    In response to Ms Robertson's written submissions, the State relevantly submitted that:
  • an employee's tenure can either be full-time or part-time, depending upon the hours worked at the relevant time, and an employee's tenure is not their 'substantively appointed position';[49]
  • Ms Robertson's assertions that she should have been allowed to work longer hours is a breach of contract issue which cannot be resolved in the present application;[50] and
  • while sub-cl 1.1 of ScheduleB to the 2012 Redundancy Directive provides that packages provided by that Directive are compensation for loss of job tenure, the loss being compensated is the loss of a permanent position within the Queensland Public Service and job tenure is not specific to either full-time or part‑time employment.[51]

Ms Robertson was not a 'Tenured part-time employee' within the meaning of the 2012 Redundancy Directive at the time of the termination of her employment

  1. [34]
    The question is whether, as at 19 October 2012, Ms Robertson fell within the class of employees described as 'Tenured part-time employees' as contained in sub-cl 3.3 of ScheduleB to the 2012 Redundancy Directive. If Ms Robertson did, then she was paid the correct amount of incentive payment. If MsRobertson did not, then she was not paid the correct amount of incentive payment on termination of her employment.
  1. [35]
    As I held in Robertson No. 2:
  • the 2012 Redundancy Directive was a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992;
  • the construction of a statutory instrument is approached in the same way as that of a statute;
  • the construction of a statute begins with the words used and, at the first stage of construction, a consideration of the context of the provision, where context is to be understood in its widest sense, which includes the surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole, and it extends to the mischief which it may be seen that the statute is intended to remedy; and
  • by virtue of s 14 of the Statutory Instruments Act 1992, s 14A(1) of the Acts Interpretation Act 1954, which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation, applies to the interpretation of the 2012Redundancy Directive.[52]
  1. [36]
    In my view, the phrase 'Tenured part-time employees' contained in sub-cl 3.3 of ScheduleB to the 2012 Redundancy Directive, must be construed in context and as part of the 2012Redundancy Directive as a whole.
  1. [37]
    There is no dispute between the parties that the redundancy packages, contained in Schedule B to the 2012 Redundancy Directive, are to compensate an employee for loss of job tenure.
  1. [38]
    By specifically referring to tenured part-time employees as receiving only a proportionate payment of the incentive payment, to be adjusted to reflect the proportion of full‑time hours worked by such employees, a purpose of that part of the 2012 Redundancy Directive was to compensate those employees, on a proportionate basis, for the loss of their job tenure as part-time employees.
  1. [39]
    Section 125 of the PS Act provides that appointment as a public service officer in a department on tenure may be on the basis of full-time or part-time employment, '… as decided by the officer's chief executive.' According to the 2007 letter of appointment, MsRobertson was appointed as a tenured full-time employee. At the time of the termination of her employment, Ms Robertson was working part-time. However, MsRobertson's part-time employment agreements made in 2012 were clearly temporary and were clearly made under parental leave provisions.
  1. [40]
    There was a dispute about whether, in the last seven weeks of her employment, MsRobertson should have been working part-time or full-time. But the fact she was working part-time over that period did not alter her appointment as a tenured full-time employee. On the evidence before me, at no stage did Ms Robertson agree to relinquish her status as a tenured full-time employee. There is no evidence that Ms Robertson, at any point after December 2006, agreed to be permanently employed on a part-time basis. Therefore, MsRobertson's status did not change between her appointment as a tenured full-time employee in December 2006 and 19 October 2012.
  1. [41]
    I cannot accept the submissions made by the State about this issue. The issue is not whether Ms Robertson was a part-time employee within the meaning of the Award as the answer to that question would only determine her entitlements under the Award. The issue is whether or not Ms Robertson was a tenured part-time employee within the meaning of sub-cl 3.3 of ScheduleB to the 2012 Redundancy Directive. Further, the State's submissions ignore one of the purposes of the incentive payment in cl 3 of Schedule B to the 2012 Redundancy Directive, namely, to compensate an employee, for the loss of his or her job tenure, due to the redundancy of their position and their acceptance of a voluntary redundancy.[53] The job tenure that MsRobertson was losing was her job tenure as a full-time employee.
  1. [42]
    As at 19 October 2012, Ms Robertson did not fall within the class of employees described as 'Tenured part-time employees' as contained in sub-cl 3.3 of ScheduleB to the 2012 Redundancy Directive. As a consequence, Ms Robertson was not paid the correct amount of incentive payment on termination of her employment.

The effect, if any, of the acceptance by Ms Robertson of the terms of the voluntary redundancy offered to her

  1. [43]
    Ms Dunning's letter dated 30 August 2012 to Ms Robertson contained an offer to accept a voluntary redundancy. Attached to Ms Dunning's letter was a pro forma document on which Ms Robertson had to indicate whether she accepted or declined that offer. Also attached to Ms Dunning's letter was a schedule setting out an estimate, as at 31 August 2012, of the benefits Ms Robertson would receive if she accepted the offer and her employment ended on 19 October 2012.
  1. [44]
    In the estimate schedule, the cash equivalent of the incentive payment was $4,033.44[54] which was calculated on the basis that Ms Robertson was working oneday per week.MsRobertson accepted the voluntary redundancy offer in writing on 24 September 2012.[55] The amount of $4,033.44 was paid to Ms Robertson.[56]
  1. [45]
    There is no dispute between the parties that the correct amount of the incentive payment that should have been paid to Ms Robertson, on the assumption she was a tenured part-time employee working twodays per week at the time her employment came to an end, was $8,066.88. That error was corrected by the State when Ms Robertson was paid an additional $4,033.44 in the pay cycle ending 31 October 2012.[57]
  1. [46]
    At the conclusion of the hearing on 7 September 2020, I raised with the parties that neither party had made any submissions about the effect, if any, of MsRobertson's conduct by her accepting the incentive payment, as set out in the voluntary redundancy offer made by Ms Dunning, which was calculated as if she was a tenured part-time employee.[58] I gave the parties the opportunity to make further written submissions on that point. Both parties made further written submissions.
  1. [47]
    Ms Robertson submits that her acceptance of Ms Dunning's offer was an agreement to end her employment and was not an agreement to accept a specific sum of money and that she disputed the sum of money paid to her both before and after signing the form such that at no time did she indicate that she accepted the monetary calculations of her redundancy package made by the State.
  1. [48]
    In this regard, Ms Robertson points to the action she took, including, but not limited to:
  • her notification to this Commission on 24 September 2012 of an industrial dispute about the State's refusal to allow her to return to her full-time position since her part‑time agreement expired on 31August2012; and
  • her letter to Ms Dunning dated 3 October 2012 in which Ms Robertson informed Ms Dunning that she did not accept the basis upon which the estimate of the incentive payment had been made.
  1. [49]
    The State submits that:
  • despite Ms Robertson's expressed dissatisfaction about the redundancy payment to be made to her, MsRobertson accepted the voluntary redundancy on the terms offered and was paid accordingly;
  • there was no conduct on the part of the State which could reasonably lead MsRobertson to believe that the terms on offer were different to those offered or that there was any prospect of those terms changing in the future; and
  • as a consequence, in reliance of the decision in The Commonwealth v Verwayen,[59] Ms Robertson should be estopped from changing her position in relation to her acceptance of the offer of a voluntary redundancy on the terms offered - as evidenced by her acceptance of the offer and acceptance of the payment - as it would cause a detriment to the State.
  1. [50]
    Although, in my view, Ms Robertson did accept the terms of the offer of a voluntary redundancy and did not merely agree to end her employment, Ms Robertson's acceptance of Ms Dunning's offer, including in respect of the way the incentive payment was calculated as set out in the estimate schedule, does not mean that Ms Robertson should be precluded from receiving the correct amount of the incentive payment by virtue of her conduct.
  1. [51]
    The provisions of cl 4.8 of the Award are set out in paragraph [22] of these reasons. The effect of that clause is that its provisions did not apply to employees of Queensland government departments to the extent that the provisions of the 2012 Redundancy Directive provided for entitlements superior to those in that clause. The 2012 Redundancy Directive provided for superior entitlements. The offer of an incentive payment, contained in cl 3 of Schedule B to the 2012 Redundancy Directive, is one example of such a superior entitlement. The source of MsRobertson's entitlement to the offer of the incentive payment was the 2012 Redundancy Directive.
  1. [52]
    The application of the principles of estoppel and waiver to the enforcement of statutory rights depends upon their consistency with the terms and purpose of the statute creating the rights.[60] The critical question is whether the benefit conferred by the statute is personal or private or whether it rests upon public policy or expediency.[61]
  1. [53]
    In an industrial relations context, it has been held that it is sound principle that statutory rights should not be defeated by estoppel, especially statutory rights created for the benefit of the public or a section of the public.[62] Thus, for example, rights contained in industrial awards, given statutory force by virtue of the Conciliation and Arbitration Act 1904 (Cth),[63] the Industrial Relations Act 1988 (Cth)[64] and the Workplace Relations Act 1996 (Cth) prior to the amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth),[65] are such statutory rights which cannot be defeated by estoppel or waiver.[66]
  1. [54]
    The 2012 Redundancy Directive was made pursuant to s 54(1) of the PS Act which relevantly provides that the Industrial Relations Minister may make rulings (which includes directives) about the remuneration and conditions of employment of non‑executive employees. By s 47(3) of the PS Act, a directive binds the persons to whom it applies.
  1. [55]
    As referred to earlier in these reasons at paragraph [35], the 2012 Redundancy Directive is a statutory instrument within the meaning of the Statutory Instruments Act 1992. The express purpose of the Directive was to '… specify the action to be taken and the conditions and entitlements applying to public service employees in relation to an early retirement package, redundancy package or retrenchment package.'[67]
  1. [56]
    In my view, the statutory rights created by the combined effect of s 47(3) of the PS Act and the 2012 Redundancy Directive did not confer a personal or private benefit, but created substantive rights based upon public policy, namely, the entitlements to be provided to employees, to whom the 2012 Redundancy Directive applied, as compensation for loss of job tenure. The purpose of the incentive payment was similar to the purpose of analogous benefits conferred by industrial awards in cases of redundancy.
  1. [57]
    For these reasons, even assuming (without deciding) that Ms Robertson's conduct in accepting the offer of a voluntary redundancy in the manner she did was conduct capable of giving rise to an estoppel or waiver, Ms Robertson's entitlement, as a tenured full‑time employee to the incentive payment under the 2012 Redundancy Directive, could not be subject to the doctrine of estoppel or extinguishment (in part) by waiver.

Conclusion

  1. [58]
    For the reasons given above, Ms Robertson has discharged the onus on her in relation to the incentive payment claim. There are wages payable and unpaid in respect of the termination of Ms Robertson's employment. It is not disputed by the State that the gross amount in question is $12,100.32.
  1. [59]
    Ms Robertson's application in Matter No. B/2018/46 was an application, made pursuant to s 95 of the Industrial Relations Act 2016, for proportionate payment of long service leave. For the reasons given in Robertson No. 2,[68] that specific application was incompetent. I dismiss that application.[69]

Orders

  1. [60]
    I make the following orders:
  1. In Matter No. B/2018/47, that pursuant to s 278(8)(a)(i) of the Industrial Relations Act 1999, the Respondent pay the Applicant the amount of $12,100.32, less applicable tax, if any, within 22 days of 8 December 2020.

  1. The application in Matter No. B/2018/46 is dismissed.

Footnotes

[1] Matter No. B/2018/47.

[2] [2019] QIRC 196 ('Robertson No. 2').

[3] [2020] QIRC 074 ('Robertson No. 3').

[4] Exhibit 1, exhibit C.

[5] Exhibit 8, para. 32.

[6] Exhibit 8, paras. 17-18.

[7] Exhibit 8, para. 18.

[8] Exhibit 8, para. 19. The correct reference is to cl 8.3.2(a) of the Family Leave (Queensland Public Sector) Award - State 2012. Ms Robertson's reference is to the equivalent provision in the Family Leave Award 2012.

[9] Exhibit 8, para. 20. The correct reference is to cl 8.3.2(d) of the Family Leave (Queensland Public Sector) Award - State 2012. Ms Robertson's reference is to the equivalent provision in the Family Leave Award 2012.

[10] Exhibit 8, para. 21.

[11] Exhibit 8, para. 22 and exhibit F.

[12] Exhibit 8, para. 23 and exhibit F, page 1.

[13] Exhibit 8, para. 24.

[14] Exhibit 8, para. 26.

[15] Exhibit 8, paras. 27-32. The correct reference is to cl 8.2.2 of the Family Leave (Queensland Public Sector) Award - State 2012. Ms Robertson's references are to the equivalent provisions in the Family Leave Award 2012.

[16] Exhibit 8, para. 35 and exhibit G.

[17] Exhibit 4, exhibit A, page 1, third dot point and Exhibit 8, para. 36.

[18] Exhibit 8, para. 37.

[19] Exhibit 9, paras. 5-6.

[20] Exhibit 9, para. 10.

[21] Exhibit 9, para. 11.

[22] Exhibit 9, para. 12.

[23] Exhibit 9, para. 13.

[24] Ms Robertson's written submissions filed on 24 June 2020 ('Ms Robertson's written submissions'), para. 1.

[25] Ms Robertson's written submissions, para. 2.

[26] Ms Robertson's written submissions, para. 4.

[27] Ms Robertson's written submissions, para. 4.

[28] Ms Robertson's written submissions, para. 5.

[29] Ms Robertson's written submissions, para. 5.

[30] Ms Robertson's written submissions, para. 5.

[31] Ms Robertson's written submissions, paras. 7-8.

[32] Ms Robertson's written submissions, para. 11.

[33] Ms Robertson's written submissions, para. 13.

[34] Ms Robertson's written submissions, para. 14.

[35] Ms Robertson's written submissions, paras. 15-28.

[36] The State's written submissions filed on 17 July 2020 ('the State's submissions'), para. 5.

[37] The State's submissions, para. 4.

[38] The State refers to the Cambridge Dictionary definition of 'tenure' as including: '… being the legal owner of land, a job, or an official public position, or the period of time during which you own it.'

[39] The State's submissions, para. 8.

[40] The State's submissions, paras. 7, 8 and 13.

[41] The State's submissions, para. 9.

[42] The State's submissions, para. 9.

[43] The State's submissions, paras. 11-12.

[44] The State's submissions, para. 15.

[45] Clause 4.3 of the Award relevantly provided:

4.3Part-time employment

4.3.1 "Part-time employee" means an employee who is engaged to work a regular pattern of ordinary hours each fortnight. Such ordinary hours in any one week shall be less than the prescribed weekly hours of a full-time employee.

[46] The State's submissions, paras. 20-21.

[47] The State's submissions, para. 22.

[48] The State's submissions, para. 23.

[49] The State's submissions, para. 24.

[50] The State's submissions, para. 25.

[51] The State's submissions, paras. 27-28.

[52] Robertson No. 2, (n 2) [56]-[59].

[53] Directive No. 04/12 Early retirement, redundancy and retrenchment cl 2, Schedule A cl 3 and Schedule B

sub-cl1.1 and sub-cl 1.4. The other purpose was to encourage employees to exit the department on or by a specified date: Directive No. 04/12 Early retirement, redundancy and retrenchment, Schedule B sub-cl 3.1.

[54] Exhibit 3, sixth page.

[55] Exhibit 1, exhibit C.

[56] Exhibit 4, para. 4.

[57] Exhibit 4, para. 4.

[58] T 1-45, l 27 to T 1-47, l 46 (7 September 2020).

[59] [1990] HCA 39; (1990) 170 CLR 394, 409 and 416 (Mason CJ) ('Verwayen').

[60] Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95, [21] (French J) ) ('MHSB').

[61] Verwayen (n 59), 405-406 (Mason CJ), 456 (Dawson J) and 486 (Gaudron J).

[62] Kidd v Savage River Mines (1984) 6 FCR 398, 409-410 (Gray J).

[63] Ibid 410.

[64] MHSB (n 60), [20] (French J).

[65] Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250, [32] (Goldberg J).

[66] See also Ace Insurance v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532, [140]-[145] (Perram J) and Workpac Pty Ltd v Rossato [2020] FCFCA 84; (2020) IR 296 38, [801] (White J).

[67] Directive No. 04/12 Early Retirement, Redundancy and Retrenchment cl 2.

[68] Robertson No. 2 (n 2), [11].

[69] The State did not object to Ms Robertson's actual long service leave claim being considered as part of her unpaid wages claim in Matter No. B/2018/47 - Robertson No. 2 (n 2), [11]. The decision about that claim is contained in Robertson No. 3 (n 3), [34]-[57].

Close

Editorial Notes

  • Published Case Name:

    Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4)

  • Shortened Case Name:

    Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No. 4)

  • MNC:

    [2020] QIRC 211

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    08 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ace Insurance Ltd v Trifunovski [2011] FCA 1204
2 citations
Jump To
Cite 1 - [2011] FCA 1204
Cite 2 - [2011] FCA 1204
ACE Insurance Ltd v Trifunovski & Ors (2011) 200 FCR 532
2 citations
Jump To
Cite 1 - (2011) 200 FCR 532
Cite 2 - (2011) 200 FCR 532
Commonwealth of Australia v Verwayen [1990] HCA 39
2 citations
Jump To
Cite 1 - [1990] HCA 39
Cite 2 - [1990] HCA 39
Commonwealth v Verwayen (1990) 170 CLR 394
3 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Jack Gordon Kidd v Savage River Mines (1984) 6 FCR 398
3 citations
Jump To
Cite 1 - (1984) 6 FCR 398
Cite 2 - (1984) 6 FCR 398
Cite 3 - (1984) 6 FCR 398
Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95
3 citations
Jump To
Cite 1 - (2000) 99 FCR 95
Cite 2 - (2000) 99 FCR 95
Cite 3 - (2000) 99 FCR 95
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784
2 citations
Jump To
Cite 1 - [2000] FCA 784
Cite 2 - [2000] FCA 784
Robertson v Queensland (No 3) [2020] QIRC 74
2 citations
Jump To
Cite 1 - [2020] QIRC 74
Cite 2 - [2020] QIRC 74
Robertson v State of Queensland (Department of Communities, Disability Services and Seniors) (No 2) [2019] QIRC 196
2 citations
Jump To
Cite 1 - [2019] QIRC 196
Cite 2 - [2019] QIRC 196
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406
2 citations
Jump To
Cite 1 - [2002] FCA 1406
Cite 2 - [2002] FCA 1406
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
2 citations
Jump To
Cite 1 - (2002) 121 IR 250
Cite 2 - (2002) 121 IR 250
Workpac Pty Ltd v Rossato [2020] FCFCA 84
2 citations
Jump To
Cite 1 - [2020] FCFCA 84
Cite 2 - [2020] FCFCA 84
Workpac Pty Ltd v Rossato (2020) IR 296
2 citations
Jump To
Cite 1 - (2020) IR 296
Cite 2 - (2020) IR 296

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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